Carriers: Limitation of Amount of Recovery in Case of Loss of Baggage

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RECENT IMPORTANT DECISIONS 65

description between monuments and courses and distances, is that the mon-
uments prevail ; and where there is a conflict between either of these and
the quantity of the land designated, the former prevails. Brewster, Con-
veyancing, §§ 87, 92. City of Decatur v. Niedermeyer, 168 111. 68; Notes
and cases 30 Am. Dec. 717; Peterson v. Beha, 161 Mo. 513; Matkeny v. Allen,
63 W. Va. 443, 60 S. E. 407, 129 Am. St. Rep. 984. The application of this
rule has reference to the monuments and measurements made by the orig-
inal survey. Woodbury v. Venia, 114 Mich. 251, 72 N. W. 189. It will not
be applied where the natural object is shown to be variable in its position,
Smith v. Hutchinson, 104 Tenn. 394, 58 S. W. 229. As where monuments
called for as being near the intended line. Harry v. Graham, 18 N. C. 76, 27
Am. Dec. 226. So whenever the evidence is sufficient to induce the belief that
the mistake in a survey is in the call for a natural or artificial object and
not in the call for course and distance, the latter will prevail. Johnson v,
Archibald, 78 Tex. 96, 22 Am. St. Rep. 27. And where the natural object is
not clearly identified and where it would cause a departure from other nat-
ural objects called for, the monuments give way to courses and distances.
Bell County Land and Coal Co. v. Hendrickson, 24 Ky. Law Rep. 371, 68
S. W. 842. Where it was shown that the greater portion of the boundary
of a grant of 500,000 acres was not run on the ground but was platted in,
and that the surveyor was mistaken or ignorant as to the true location of
the monuments called for, so that, if they are taken as making the boundary
the tract would contain but little over 100,000 acres, while as platted ac-
cording to the courses and distances given, it contained the quantity called
for in the grant, it was held that the general rule did not apply to mistaken
or false calls and the courses and distances prevailed, King v. Watkins, 98
Fed. 913, nor does the general rule apply where the monument called for
was not placed in position by the surveyor, but was merely an office call,
and when in such a case, a call for courses and distances will maintain the
integrity of an older survey, the courses and distances will prevail. Holds-
worth v. Gates, Tex, Civ. App., no S. W. 537. Further as to when quantity
controls, see 6 Mich. L. Rev. 343.

Carriers — Limitation of Amount of Recovery in Case of Loss of Bag-
gage. — P purchased from D railroad company a fifty-trip commuter family
ticket, issued in conformity to D's tariff, a list of which was on file as re-
quired by law with the Public Service Commission. The ticket provided
that in consideration of the reduced rate, that "the company's liability for
baggage belonging to each passenger shall not exceed fifty dollars." P's
baggage, valued at over one thousand dollars, was lost and she seeks to
recover its actual value. Held, (Laughun and Scott, JJ. dissenting), that
the limitation of D's liability to a certain amount was clearly expressed in
the ticket which P purchased and that P was bound by the limitation and
could not recover in excess thereof, even though its loss was due to D's
negligence. Gardiner v. New York Cent. & H. R. Co. (1910), 123 N. Y.
Supp. 865.

It is well settled, despite some apparent conflict in the cases, that a com-

66 MICHIGAN LAW REVIEW

mon carrier and a passenger may make a binding contract with respect to
the value of the baggage shipped, which will limit the amount of recovery
in case of loss. However, the passenger must not be denied the right to
demand a higher valuation, not exceeding the real value of the goods, upon
the payment of reasonable compensation. Hart v. Penn. R. R. Co., 112
U. S. 717; Ullman v. Chicago etc. Ry. Co., 112 Wis. 150. According to the
weight of authority, even when the loss of baggage is due to the railroad
company's negligence, the recovery by P is limited to the stipulated amount,
since the risk which the carrier assumed, was based upon the amount fixed
as the value, and the owner is estopped to deny a contract which was bene-
ficial to him when made. Hart v. Penn. R. R. Co., 112 U. S. 717; Hill v.
Boston etc. R. R. Co., 144 Mass. 284; Alair v. Northern Pacific R. R. Co.,
S3 Minn. 160; Ballon v. Earle, 17 R. I. 441; Johnstone v. Richmond etc. R.
R. Co., 39 S. C. 55; R. R. Co. v. Sowell, 90 Tenn. 17; Donlin v. Southern
Pacific Ry. Co., 151 Cal. 763; Rose v. Northern Pac. Ry. Co., 35 Mont. 70;
Zouchs v. C. & O. Ry. Co., 36 W. Va., 524; Chicago etc. R. R. Co. v. Chap-
man, 133 111. 96. The minority view of holding the carrier liable for the
full value of the goods is based mainly upon the ground that it is contrary
to public policy to permit anyone to obtain a release from the result of his
own negligence, partial and indirect though it may be by limiting the recov-
ery in amount. Everett v. R. R. Co., 138 N. C. 68; U. S. Express Co. v.
Backman, 28 O. St. 144; Broadwood v. Southern Express Co., 148 Ala. 17;
Southern Express Co. v. Rothenberg, 87 Miss 656; Fort Worth etc. Ry. v.
Greathouse, 82 Tex. 104 ;McCune v. Burlington etc. R. R. Co., 52 Iowa 600.
In the principal case, Laughun and ScoTT, JJ., in their dissenting opinion
concede the legal right of the railroad company to limit, even in the case of
negligence the amount of recovery by a mutual valuation agreement fairly
and honestly made, but hold that the agreement printed on the ticket in
controversy, to-wit, "the company's liability for baggage belonging to each
passenger shall not exceed fifty dollars," is not a valuation agreement but
an arbitrary attempt on the part of the railroad company to limit its liability
which is contrary to public policy when the loss is caused by D's negligence.

Charities— Testamentary Trusts— Gift for Masses.— The testator made
the following bequest: "I give, devise and bequeath all the rest of my
property for masses for the repose of my father's and mother's and sister's
and brother's and my own soul. The masses will be said according to the
direction of Thomas J. Fenlon and J. P. Watt, and I hereby appoint them
to direct where and when to say said masses." Proceedings were brought for
the construction of the will. Held, (Timun, J., dissenting) that this testa-
mentary gift is a valid public charity. In re Cavanaugh's Estate (1910), —
Wis. — , 126 N. W. 672.

It is well settled that the advancement of religion is an object of charity.
In re Darling [1896], 1 Ch. 50; Alden v. St. Peter's Parish, 158 111. 631, 30
L. R. A. 232, 42 N. E. 392. A bequest for masses, however, is held to be a
superstitious use and void in England. In re Bluntell's Trust, 30 Beav. 360.
In the United States the doctrine of superstitious uses does not obtain;